Anti-Imperialism/Foreign Policy

What is the extent of Russian war crimes in Ukraine?

The Signal

What is the extent of Russian war crimes in Ukraine? Chimène Keitner on the brutal logic of Moscow’s continuing violations of international law.
Don Fontijn
Don Fontijn
At least 1,189 civilians are dead and 1,900 injured since the outset of the invasion of Ukraine. Michelle Bachelet, the United Nations high commissioner for human rights, relayed these numbers in Geneva on Wednesday, citing the destruction of homes, hospitals, and schools in what she described as a “living nightmare” throughout the country. “Indiscriminate attacks are prohibited under international humanitarian law,” Bachelet said, “and may amount to war crimes.” The United States has reached similar conclusions: President Joe Biden called Vladimir Putin a “war criminal” in an exchange with reporters last month, and Secretary of State Antony Blinken later said that the U.S. formally “assesses that members of Russia’s forces have committed war crimes in Ukraine.” How much of this conflict is literally criminal?
Chimène Keitner is a professor at the University of California’s Hastings College of the Law and a former counselor on international law at the U.S. State Department. To Keitner, Russian military forces “appear to have embraced war crimes as the means of prosecuting the war as a whole”—a development she sees as a key indicator of Putin’s state of mind as he presses ahead. Though generally sensitive to his personal image, he seems uninhibited by international perceptions that his and the Russian military’s actions are criminal—or the idea that he and his leadership could face legal consequences for them. The strategic mindset this implies has chilling implications, in Keitner’s view—not just for what will happen in the aftermath of the war but for how it will progress from here.
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Graham Vyse: What happened at the Donetsk Regional Theater of Drama in Mariupol?
Chimène Keitner: Based on public information, it appears that, on March 16, more than 1,000 residents of Mariupol were sheltering in the basement. They’d written the word children—in Russian letters, to be clearly visible from the air—in front of and behind the building. Nevertheless, Russian air forces bombed the theater, causing it partially to collapse and trap people inside. There was a rescue operation, but the city was still under fire as it took place. The death toll is reportedly in the hundreds, though it could be considerably higher. Russian authorities offered no explanation as to how this could conceivably have been a military target. It’s one of numerous civilian targets that Russian forces have hit—but for many people, emblematic of the use of civilian targeting in the conflict overall.
Vyse: This horrible thing—why was it specifically a war crime, in legal terms?
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Keitner: International laws of war are well established, and they generally fall into two broad categories: laws governing when a country can resort to armed force and laws governing the use of that force.
To begin with, Russia’s invasion of Ukraine is unlawful because it’s a paradigmatic war of aggression. The United Nations charter explicitly says countries cannot use force against the territorial integrity or political independence of other countries. There are only a few narrow exceptions to that rule, none of which apply here.
Moreover, in armed conflict, there are additional rules governing what kinds of weapons can be used and what can be targeted. We generally refer to these rules as international humanitarian law, which aims to minimize unnecessary suffering. The cardinal rule of international humanitarian law is to distinguish between military and civilian objectives. Every attack must have a military objective. You cannot target civilians. Targeting civilians is per se a war crime. There’s no plausible explanation for targeting this theater—and certainly none Russian authorities have given—that suggests it was targeted for any other reason than targeting the civilians within it.
Vyse: How prevalent are Russian war crimes in this conflict?
Keitner: Russian forces appear to have embraced war crimes as means of prosecuting the war as a whole. It’s shocking. Of course, Ukrainian forces are engaging with Russian forces, and we read about areas being taken or retaken by one side or the other. But the destruction we’re seeing of residential infrastructure in cities, the reports we’re getting about people targeted in breadlines as they’re trying to flee, and the inability of the International Committee of the Red Cross to maintain safe humanitarian corridors out of places like Mariupol—all of this indicates that the Russian leadership has essentially decided it’s not committed to respecting international humanitarian law in this conflict. Now, Moscow has, so far, exercised restraint in not using chemical or biological weapons. It has, so far, exercised restraint in not using tactical nuclear weapons. But its targeting practices seem to be intentionally indiscriminate. We’re also seeing more reports of Russian soldiers committing rape as a war crime.
Julia Rekamie
Julia Rekamie
More from Chimène Keitner at The Signal:
The Nuremberg trials following World War II were an after-the-fact accounting, but we’ve seen the deployment of international criminal-justice mechanisms during subsequent conflicts, and that’s when some of these goals can work at cross purposes. There can also be a perverse incentive to continue a conflict to avoid accountability—and particularly, to avoid being thrown in jail for war crimes.”
Prosecuting Putin is going to be the biggest challenge, because he’s a head of state. At this point, he has a solid claim to what we call “head-of-state immunity,” though it’s something he’ll lose when he’s no longer in office. Prosecuting a sitting head of state isn’t something other countries’ courts can do, and it’s hard to see a solid legal basis on which an international court could do it, because Russia is a veto-wielding member of the United Nations Security Council and not a party to the ICC.”
The two biggest obstacles to prosecuting people near the top of the chain of command are going to be obtaining custody of them and obtaining sufficient evidence that they knew—or should have known—about the crimes their subordinates were committing. Russia certainly isn’t going to extradite any of them to any of the tribunals we’re discussing. That said, there are no immunity obstacles, and the legal pathways to prosecution are very clear.”
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Meanwhile

What is the war in Ukraine doing to the global economy? Adam Tooze on sanctions, inflation, and the world’s new financial order.
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How are media incentives changing American politics? Lance Strate on the paradoxical tension between transparency and democracy.
The Signal
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What does Russia’s war in Ukraine mean for its ally in China? Victor Shih on Beijing’s bad and worse options.
Presidential Press and Information Office of Russia
Presidential Press and Information Office of Russia
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